The High Court has ruled that retrospective changes to the LGPS exit credits regime were lawful – and gave some helpful guidance around the new discretion to pay an exit credit.
This is the first in our series of ebriefings on the Government's Green Paper: Transforming public procurement. This ebriefing looks at the proposal to set out 'public procurement principles' in the proposed procurement legislation.
Chapter 1 of the Green Paper says that the Government proposes the following principles should be “included in the new legislation”. These principles (with brief thoughts from us on some of them) are:
- Public good – although it is not clear from the paper exactly what is meant by “public good” and how it interfaces with “social value, giving rise to a concern that “public good” might be whatever the Government at the time decides to call it;
- Value for money – although this duplicates obligations many contracting authorities are subject to already;
- Transparency – although it is not clear how the tension between this and the principles of integrity and fair treatment of suppliers, in relation to things like the disclosure of tendered prices and method statements, is to be resolved;
- Integrity – in terms of avoiding conflicts of interest, respecting suppliers’ confidential information and running procurements professionally;
- Fair treatment of suppliers – see our comments above on transparency; and
- Non-discrimination based on nationality – although PPN 11/20 recommends discrimination based on area for below threshold contracts, which will therefore also discriminate against non-national suppliers who are not within the designated area.
The approach of setting out general principles in legislation is a typically European approach to legislation. It’s a bit like placing a legal obligation on citizens to do whatever is necessary to restrict the spread of Covid-19, without setting out the practical steps citizens must follow to comply with that duty.
The typical UK approach to legislation (of setting out detailed rules rather than general principles) leads to greater clarity (and therefore less cost) for contracting authorities and suppliers. It is particularly appropriate for legal jurisdictions such as England and Wales where court decisions are based mainly on previous case law than through working from general principles. It also means that the potential “conflicts” between the requirements of the different principles need to be resolved in the legislation itself, rather than being left to contracting authorities to resolve.
The European legislative approach of setting out general principles does give greater flexibility though. It also potentially signals a move towards “legislation by guidance”, with the required practical steps being set out in guidance issued later (but which has not received Parliamentary scrutiny) rather than in the legislation itself.
It is curious that a government that has pursued Brexit specifically to be able to set their own rules in areas such as procurement, is proposing such a European approach to legislation.
We also have concerns over some of the proposed principles. A requirement to follow “national guidance” on the “public good”, may not be appropriate for democratically elected local authorities who may have a different mandate or charitable registered providers of social housing who have different charitable objectives. As set out above, there are tensions between some of the principles which ought to be resolved in the legislation.
We will be making these comments in our response to the consultation paper, which is to be submitted by 10 March 2021. In the meantime please look out for our further ebriefings on the Green Paper.
For more information
For further information in relation to any of the above, please contact your relevant ACS contact or Andrew Millross.
The Government has brought forward draft laws to allow independent schools to close the Teacher’s Pension Scheme to new joiners but to allow existing members to continue.
The Government has started consultation on the regulations providing the detailed framework for collective money purchase pension schemes.
In June we took on the challenge to become a Sepsis Savvy organisation - I'm really pleased to announce we've done it!
In 2020 the court rules were changed to require that all residential tenants must be given 14 days’ notice of an eviction. What happens though if the eviction is cancelled on the day?
We are delighted to announce that our private wealth law department has continued to maintain its Band 2 position in the latest edition of Chambers and Partners High Net Worth.
The new CHF is set to launch and open for applications with £4 million set to be allocated to community-led housing groups to support an increase the supply of affordable housing in England.
Charities, like other organisations, may be subject to or choose to voluntarily comply with the reporting requirements under the Modern Slavery Act 2015.
The draft regulations making it mandatory for anyone entering a registered care home in England to have been double vaccinated unless they are clinically exempt were made on 22 July 2021.
Doug Mullen and Michelle Knight discuss the recent judicial review of regulations changing the regime governing exit credits in the local government pension scheme.
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